Here are the minutes from last month's community meeting with lawyer Peter Enslein to discuss legal options that the community can take if sewer backups continue. With last week's announcements, here's to hoping none of these actions will be necessary!
John T. Salatti
"Together, Building a Better Bloomingdale"
Minutes from the November 15th Meeting Reviewing Legal Options to Address Sewer Backups
Mayor Vincent Gray, DC Water, and the Mayor’s Task Force on the Prevention of Flooding announced on December 7th that a project would commence immediately that when completed in 2014 would divert six million gallons of untreated storm run-off to the McMillan Sand Filtration Site as part of the medium-term effort to reduce sewer backups in Bloomingdale and LeDroit Park. More details about that effort are available elsewhere, but we want to acknowledge the importance of this announcement as well as the progress of Ward 5 Councilmember Kenyan McDuffie’s bill to provide financial relief to those residents who suffered property damage because of last summer’s sewer backups.
Even so, the community should know what came out of the public meeting held last month and the legal options that the community should consider taking to ensure that the Clean Rivers Project goes forward as planned because it is the only long term solution to the sewage backup problem.
A community meeting was held in St. Martin’s Pioneer Room on November 15, 2012. The meeting was attended by approximately 45 people, representing 30 residences, a church, and a local small business that had suffered damage from sewer back-ups and related flooding in Bloomingdale, LeDroit Park, and Truxton Circle. The purpose of the meeting was to discuss several legal options available to the neighborhood that might help our efforts to permanently end the problems we experienced this past summer.
Leading the discussion of these legal options was Peter T. Enslein, Esq., a trial lawyer in the District of Columbia. For the past thirty years, he has handled complex product liability, personal injury, and property damage litigations against corporations, both locally and throughout the United States. Since 2005, he has prosecuted a property damage action against D.C. Water on behalf of the owner of eight apartment buildings. In that matter, the plaintiffs alleged corrosive water from DC Water’s mains caused significant damage to the copper plumbing. Mr. Enslein has also brought and concluded actions against D.C. Water related to the health effects suffered as a result of lead in drinking water.
Among the legal options discussed by question and answer in the community meeting, three stand out:
(1) Intervene in the Federal District Court case requiring the “big dig” enlargement of the NE trunk line to the Anacostia River. The issue discussed was whether to intervene and become a party in this matter so that our community would have a voice in any future action that threatens the requirement that D.C. Water undertake the “big dig” and complete it by 2025.
The projected cost of intervention was $1,000 to $5,500.
(2) Make a Freedom of Information Act (FOIA) request to D.C. Water requesting documents. The purpose of a FOIA request would be to obtain information regarding (a) planned or permitted sewer tie-ins by large scale real estate developers and businesses in surrounding “upstream” and “downstream” neighborhoods, (b) volume of new untreated sewage and run-off generated from new tie-ins, and (c) D.C. Water’s knowledge of the inadequate system and health hazards in our community.
The projected cost runs from $800 if full compliance only requires a letter to $8,000 if full compliance requires a lawsuit.
Another cost is the evaluation of the data received from D.C. Water. Having an expert evaluate the data would cost approximately $5,000.
(3) Sue D.C. Water and the D.C. government. The neighborhood could sue D.C. Water and DCRA to obtain a permanent injunction prohibiting any new sewer tie-ins by large scale developers and businesses until the Clean Rivers Project is completed or our issues are otherwise solved. The basis of such an action is the health risk posed to residents and those driving through the community during a flood event. Any settlement or court order would require D.C. Water to have the tunnels in operation by 2025.
The cost of such an action depending on the circumstances could range from $28,000 to in excess of $65,000.
The first two options could be initiated for about $2,000 to $18,000 and would provide the community with a more level playing field with regard to D.C. Water and the D.C. government.
In addition to these legal actions that the community as a whole could take, we also discussed lawsuits to recover the costs residents paid because their homes or apartments were damaged when the sewer system backed up.
Because any kind of legal action is a costly venture, ways to raise money to cover legal costs were also discussed. For instance, residents could pledge $100 per month each to begin a legal fund. Another option would be to do crowdsourcing on the Internet using Kickstarter or some other Web-based fundraising tool. Of course, other ways to raise money would also need to be explored. The participants also discussed possible allies within the city.
The Mayor’s Task Force on the Prevention of Flooding publicly discussed a draft final report on Thursday, December 6, 2012, including storage of six million gallons of untreated run-off storage at the McMillan Site by 2014 and a vast storage site under First Street by 2016 that would capture another six million gallons of untreated sewage and run-off. When the First Street tunnel is built, the storage at the McMillan site will be reduced to 3 million gallons of storage by eliminating one storage cell at that time. The other storage cell will become a permanent fixture of any future development at the McMillan site.
At our first meeting, the community had agreed to reconvene for further discussion on Thursday, January 17, 2013, at 7:00 p.m. in the St. Martin’s Church Pioneer Room at T and North Capitol Streets, N.W., to discuss potential legal options and possible fundraising efforts. In these new and more hopeful circumstances, this community meeting should now turn its attention to an explanation and understanding of the proposed solutions and issues in the report, Councilmember McDuffie’s bill to reimburse damages, and methods for obtaining public oversight over the McMillan Site and First Street storage projects.